Hypothetical Situations

I think both. The surveyor always has professional liability and sometimes finincial liability and the company, depending upon how much time has lapsed and what the state laws say, may have financial liability. In my opinion they should work together to fix the problem. Would be good PR for both.

A few more thoughts.

What if the surveyor who made the error is now retired and no longer licensed?

What if the surveyor who made the error is deceased, but the new company he started is still in business?

This is not a hypothetical situation in my world.

IMO, the surveyor in error should do all he can to correct/amend the survey. There is no corporate veil of protection or release of liability. The company should do all it can to assist in the correction.

The company's insurance is subject to payment if it results in a lawsuit and the surveyor is subject to BOR complaint if the survey is below the minimum standards or fraudulant.

I say just fix it and don't try and blame the staff. Grow a pair and own up to it.

SD

Those were the kind of questions I was getting at.

My question would be is Surveyor leaves Company, it is standard for Company to retain ownership of all files. How can Surveyor be responsible for survey if his files disappeared from the Company office? Should he take a copy of all files? Is this even legal under most employment contracts?

I would think it depends on your State rules. I'm in a recording state and we are only required to keep records for 3 years after a certified document is delivered to the client. We also have a 10 yr statute of repose.

Company records around here have no real monetary value, but more of a historical value. I have 65 yrs in my vault and nothing gets purged.

> I would think it depends on your State rules. I'm in a recording state and we are only required to keep records for 3 years after a certified document is delivered to the client. We also have a 10 yr statute of repose.
>
> Company records around here have no real monetary value, but more of a historical value. I have 65 yrs in my vault and nothing gets purged.

I am in PA. I don't remember the exact law, but the statute of repose is something like 10 years "after construction". So a survey could be done on vacant land in 1980 with no improvements until 2010. Liability runs until 2020. I cannot remember off the top of my head what it is in WV.

I am thinking along the lines if I stamp something for the company I work for. I have a job folder with all of my deeds, notes, sketches, and basically all of my thoughts written down. Who owns this file? Me as the surveyor or the company?

Surveyor should always have a copy of any files of a survey he signed or was in responsible charge on. The board will hold him liable for his survey, regardless of where he works now. The company is liable for damages. The best resolution is for the company and original surveyor to work together to fix.

Going to add another wrinkle to the mix. I am aware of a company or two which have a "company" stamp and the registered surveyor is in possession of his own stamp/ number. Assuming (yes, yes, we know, you and me) the practice is to use the company number, would that make the company solely liable (though both the surveyor who signed should be involved)?

Another thing to think about: which insurance pertains? When the survey was done the surveyor probably didn't have his own E&O coverage, it was the company that carried the insurance. When the surveyor went out on his own, his E&O coverage probably started on his business inception date and thus wouldn't cover the prior survey.

While I understand a surveyor's desire to clear his name by rectifying an error, I wouldn't want to needlessly take on liability. I'd want to bring the company's insurance into play before muddying the waters by jumping in and trying to solve the problem.

I'm not sure how it would legally work out but I think the company should be responsible. Who did the client contract with, the company or the employee? The company should be responsible for the employee's errors. It's the company's responsibility to hire competent employees and make sure they do proper work. Mistakes will happen and we all make them but when you employ someone you are ultimately responsible for what they do. The company markets the skills of the employees they hire and thus is responsible for the work.

First off, to the practical question of whose is responsible and who shopuld fix the error, the answer is of course that both should work together, wherever possible, to make good on the clients claim.

From a financial liability point of view, there can be numerous answers to these questions, depending upon many factors, including contract language and corporate status.

There are a number of firms in New York that are "grandfather corporations", i.e., as above, their seal is in the name of the company, not an indiidual. Most often I have seen this with large, old line engineering firms that have surveying departments. (Andrews & Clark and Baldwin & Corneilius come to mind. I remember one company whose license was number "3".)

Another factor is the type of corporation. Is it a sole proprietorship, an LLP or an LLC? Whose name is on the certificate of authorization filed with the state? They don't call them "limited liability corporations" for nothing. If an LLC owes money or faces a lawsuit, only the assets of the business itself are at risk. Creditors usually can't reach the personal assets of the LLC owners, such as a house or car. (Both LLC owners and corporate shareholders are not shielded if they have acted illegally, unethically, irresponsibly or negligently.)

What was the actual employment relationship? If an LS is only an employee, with no corporate title, the liability may be different that if he/she is a full partner.

Finally, who is named on the insurance as being responsible?

The Company. The individual surveyor would only be liable under a professional malpractice theory, which is hard to prove (mere errors are not malpractice) and the statute of limitations may have run. The company would be liable under contract and malpractice theories, of which contract usually has a longer statute of limitations. If physical harm resulted from the error, and it was deemed sufficient to be malpractice, then the statute of limitations may be much longer than normal.

Just from a good business practice sense, the company better do what it can for the client in a hurry and not worry about who to blame. Institute better redundant checking procedures within the company to minimize the possibility of recurrence.

Professionals working within a company are producing works for hire and can not generally take them when they depart.

The company, and the company ONLY. The owner of the company takes on the responsibility and liability of the work product delivered by it's employees. It is the company's responsibility to quality control any and all work produced under it's care, and it assumes all responsibility for the future claims associated with said work. It should carry insurance to protect itself from said potential claims.

Trent

i almost worked for a company whose standards were far below my own

had i stamped a plan for them based on their sub-standards, i would send it right back to them with any mistake. thank goodness i worked there for 3 days to cover for a buddy who works there (unlicensed buddy) and i learned of their evil ways. i did not even charge them for my time - had i moved there are started working, i would have been in a real pickle.

The surveyor is liable to the board if he did something that was not good practice, not just an honest mistake made while trying to do it right.

Financially, it SHOULD fall on the company he was working for, regardless if it was his stamp or the company's. Of course the lawyers will name everybody they can find a connection to.

:good:

I agree - unless someone sues because of the error. In that case, both will be attached to the suit.

I have lived this with some, in my opinion, critical differences...

I have been co owner of my company for about 16 years, having bout out my father after working for him for years. In 2004 we bought out another nearby company, the one I am
currently at.

A couple of years ago I was contracted, as part of this company to survey and topo a local parcel. In researching the bid I realized the company had staked the parcel abutting to the north a few years prior to my taking over. In setting up the job I realized they had the common line off by about 5 feet. An overlapping 5 feet. In addition to this, the current owner of the north parcel had put in a lawn and fence based on the previous survey. My client's parcel is vacant.

I had the line staked correctly and notified my client who then talked to the northern owner. He then called wondering how I was going to fix this since it was my fault. I informed him that much as I had empathy for his position, I was not at fault as it had been another surveyor (LS) that had signed off on the work. He then brought up that it was the same company.

This is where the differences come in. When we purchased the company, we really didn't purchase the "Company". We purposefully did not take over the corporation, but instead bought out all their files, equipment and facilities and hired their employees (except the LS) for the specific reason that we did not want the liability. We also purchased the right to use the name which is now a dba of our original firm.

Obviously, we reap benefits from the use of the name and so I feel some need to do what I can to help rectify matters if for no other reason then for PR's sake. Also, It's the right thing to do. But, I will not an cannot assume liability for the mistake.

Just so you know, the northern owner is not the one that ordered the offending survey and the improvements are only a few years old.

What a "pickle". So you want all the benefits of using the name but none of the responsibilities, suck it up and do the right thing. JMHO